### PJSC Natl. Bank Trust v Pirogova 2024 NY Slip Op 33283(U) September 17, 2024 Supreme Court, New York County Docket Number: Index No. 656519/2020 Judge: Andrew Borrok Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 294 INDEX NO. 656519/2020 RECEIVED NYSCEF: 09/17/2024


### SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 

### 53

-----------------------------------------------------------------------------------X

PJSC NATIONAL BANK TRUST Plaintiff,

- V - NATALIA PIROGOVA, Defendant.

-----------------------------------------------------------------------------------X HON. ANDREW BORROK: INDEX NO. 656519/2020 MOTION DATE 06/07/2024 MOTION SEQ. NO. 011

DECISION+ ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 011) 262,263,264, 265, 266,267,268,269,270,271,272,273,274,277,280,287,288,291,292 were read on this motion to/for CONTEMPT Upon the foregoing documents, PJSC National Bank Trust (the Judgment Creditor)'s unopposed motion (Mtn. Seq. No. 011) to hold Willy Cancel, Jr., in civil contempt is granted solely to the extent that Mr. Cancel shall appear at a deposition and provide the requested documents within the next 45 days orhe will be in civil contempt and subject to the penalties set forth in the Judgment Creditor's motion.
The facts ofthis case, including Ms. Pirogova's extensive efforts to avoid paying thejudgment entered against herby concealing her whereabouts, were discussed in detail in a prior Decision and Order ofthis Court dated July 25, 2024 (the Prior Decision, NYSCEF Doc. No. 281). Familiarity is presumed. Briefly, and as discussed in the Prior Decision, when the Judgment Creditor sent an investigator to 271 Garderville Road, New Hampton, New York 10958, an address believed to potentiallybe

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### [* 1]NYSCEF DOC. NO. 294 INDEX NO. 656519/2020 RECEIVED NYSCEF: 09/17/2024
that ofMs. Pirogova, they encountered Mr. Cancel who indicated that he was aresident ofthat address (NYSCEF Doc. No. 272).
On April 24, 2024, the Judgment Creditor issued a post-judgment subpoena to Mr. Cancel, requiring him to sit for a deposition and produce documents (the Cancel Subpoena; NYSCEF Doc. No. 264). Service was effected on April 25, 2025 (NYSCEF Doc. No. 265). Subsequently, on May 6, 2024, Mr. Cancel appeared for a deposition, without the requested documents, butrefused to testify for more than an hour (NYSCEF Doc. No. 263 ,i 25). To accommodate Mr. Cancel, the Judgment Creditor agreed to postpone his deposition until May 10, 2024. When Mr. Cancel appeared at this rescheduled deposition, he again refused to testify
- this time indicating that he needed a lawyer (id. ,i 26). As an accommodation, the Judgment Creditor once again agreed to postpone Mr. Cancel's deposition. This time the deposition was rescheduleduntil May 14, 2024 (id.). One day before this third rescheduled deposition, Mr. Cancel informed the Judgment Creditor he would not appear (id. ,i 27).
The Judgment Creditor again agreed to offer Mr. Cancel additional accommodation, postponing his deposition until May 17, 2024 (so that Mr. Cancel could find a lawyer) informing Mr. Cancel that the Judgment Creditorwould seek an order compelling his appearance and for sanctions if he did not attend (id. ,i 28). Mr. Cancel neverreplied, and to date has not appeared for a deposition orproduced the documents requested in the Cancel Subpoena (id. ,i,i 29-31).

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### [* 2]NYSCEF DOC. NO. 294 INDEX NO. 656519/2020 RECEIVED NYSCEF: 09/17/2024
The Judgment Creditornow moves for an orderpursuantto CPLR2308(a) and 5251 to (i) hold Mr. Cancel in civil contempt, (ii) allow Mr. Cancel to purge his contemptby complying with the Cancel Subpoena within 10 days, (iii) punish Mr. Cancel by ordering himto paythe Judgment Creditor's attorneys' fees and costs incurred in connection with twice attempting to take his deposition and in bringing this motion, a total of$19,200, and (iv) ordering Mr. Cancel to pay the Judgment Creditor the statutory penalty of$150 (NYSCEF Doc. No 277). Mr. Cancel has not submitted any opposition to this motion (NYSCEF Doc. No. 291).
To make a finding ofcivil contempt, the Courtmust determine that (i) a lawful order ofthe court clearly expressing an unequivocal mandate was in effect, (ii) it appears with reasonably certainty that the orderhas been disobeyed, (iii) the party to be held in contempthadknowledge ofthe court's order, and (iv) the right ofa party to the litigation is prejudiced (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). Civil contempt mustbe demonstratedby clear and convincing evidence (Classe v Silverberg, 168 AD3d 603, 604 [1st Dept 2019]). It is notnecessary that the disobedience be deliberate orwillful, rather "the mere act ofdisobedience, regardless ofits motive, is sufficient to sustain a finding ofcivil contempt ifsuch disobedience defeats, impairs, impedes orprejudices the rights ofa party" (Yalkowsky v Yalkowsky, 93 AD2d 834, 835 [2d Dept 1983]).
Pursuant to CPLR 5223 ajudgmentcreditor "may compel disclosure ofall matterrelevant to the satisfaction ofthejudgment, by serving upon any person a subpoena, which shall specify all of the parties to the action, the date ofthejudgment, the court in which it was entered, the amount ofthejudgment and the amount then due thereon, and shall state that false swearing or failure to

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### [* 3]NYSCEF DOC. NO. 294 INDEX NO. 656519/2020 RECEIVED NYSCEF: 09/17/2024 comply with the subpoena is punishable as a contempt ofcourt" (CPLR 5223). Pursuant to CPLR 5224, such subpoenas mayinclude (i) a subpoena requiring attendance at a deposition and (ii) a subpoena duces tecum requiring the production ofbooks and papers for examination (CPLR 5224[a][l]-[2]).
CPLR 2308(a) provides in relevantpart: (a) Judicial. Failure to comply with a subpoena issued by ajudge, clerk or officer ofthe court shall be punishable as a contempt ofcourt. Ifthe witness is a party the courtmay also strike his or her pleadings. A subpoenaedperson shall also be liable to the person on whose behalfthe subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustainedbyreason ofthe failure to comply. A court mayissue a warrant directing a sheriffto bring the witness into court. Ifa person so subpoenaed attends or is brought into court, butrefuses without reasonable cause to be examined, or to answer a legal andpertinent question, or to produce a book, paper or other thing which he or she was directed to produce bythe subpoena, or to subscribe his orher deposition after ithas been correctlyreduced to writing, the court may forthwith issue a warrant directed to the sheriffofthe county where the person is, committing him orher tojail, there to remain until he or she submits to do the act which he or she was so required to do or is discharged according to law. Such a warrant ofcommitment shall specify particularly the cause ofthe commitment and, ifthe witness is committed for refusing to answer a question, the question shall be inserted in the warrant. (CPLR2308[a]).
The Cancel Subpeona was issuedby Stephen Forte and Alexander Mirkin, officers ofthe Court. As such it isjudicial subpoena 

### (CadleRockJoint Venture, L.P. 

### v Patterson, 199 AD3d 557, 558 [1st Dept 2021] "CPLR2308 (a) embraces subpoenas issued by an officer ofthe court (such as an attorney) at any stage ofajudicial proceeding, regardless ofwhether the subpoena was specifically returnable in court"). Unquestionably at this point, Mr. Cancel has failed to comply with the Cancel Subpoena and appears to be engaged in gamesmanship to avoidproducing the documents that he mustproduce and to otherwise appear at a deposition. This appears to be in

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### [* 4]NYSCEF DOC. NO. 294 INDEX NO. 656519/2020 RECEIVED NYSCEF: 09/17/2024 attempt to frustrate orimpede the legitimatejudicialproceeding (Clinton CornerHD.F.C. v Lavergne, 279 AD2d 339, 341 [1st Dept 2001]). Merely as an accommodation andto avoid any doubt, he must complywiththe Cancel Subpeona byproducing the requested documents and appearing at a deposition within the next 45 days or he shall be heldincontempt ofCourt (CadleRockJoint Venture, L.P. vPatterson, 199 AD3d 557, 558 [1st Dept 2021]; CPLR 2308[a]).
The decisionto award sanctions is leftto the sound discretion ofthe Court. Atthis time, the Court declines to award sanctions. IfMr. Cancel fails to complywith the clear andunequivocal order ofthis Court, he shall be subjectto the reliefsoughtbythe Judgment Creditor. Accordingly, itis hereby
ORDERED thatthe Judgment Creditor's motion (Mtn. Seq. No. 011) to holdMr. Cancel in civil contemptis granted solelyto the extent set forth above.

9/17/2024

DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

656519/2020 PJSC NATIONAL BANK TRUST vs. PIROGOVA, NATALIA Motion No. 011
5 of 5 ANDREW BORROK, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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